SHADAKSHARI C.L. Vs. SANTHOSHA C.A.

JUDGEMENT

(1.) This is an appeal filed under Order 43 Rule 1(r) of the Code of Civil Procedure. The events that have led to this appeal are as follows:

(2.) Original Suit 246/2014 was instituted by the respondent in the court of Additional Civil Judge, Tarikere. It was a title suit based on a registered will dtd. 19/10/2011 executed by C.C Laxmanappa. In the suit, an order of temporary in junction was in force till its disposal restraining the appellant from interfering with respondent's possession of suit property. The appellant herein challenged the order of grant o f temporary in junction by preferring an appeal and it was dismissed. Then on conclusion of trial the suit came to be dismissed . Therefore, the respondent preferred an appeal under sec. 96 read with Order 41 Rule 1 CPC to the court of Senior Civil Judge, Tarikere. In the appeal respondent filed an application for temporary injunction and since by order dtd. 13/12/2021 , the application came to be allowed, the appellants have preferred this appeal.

(3.) It is not necessary to deal with the factual aspects since Sri Madhusudhana Rao for the appellants and Sri R Vijay Kumar for the respondent raised legal issues while arguing. It was the argument of Sri Madhusudhana Rao that the learned Senior Civil Judge , while deciding the application for temporary injunction should have considered the evidence of the witnesses to arrive at a conclusion whether there was a case for grant of temporary injunction pending disposal of the appeal or not. He argued that the suit was for declaration o f title o f the respondent/plaintiff over the suit property. As the trial court has held that the execution of will was not free from suspicious circumstances for dismissing the suit, the first appellate court should have considered the evidence as also the findings of the trial court while deciding the application for grant of temporary in junction during pendency of the appeal. Instead, it is erroneously held by the Senior Civil Judge that the appellants have not disputed the testamentary capacity of Laxmanappa and since an order of temporary injunction was in force till disposal o f the suit, the interest o f the appellant would not be affected in any way if the order of temporary in junction is granted in the appeal also. Sri Madhusudhana Rao argued that the court below has thus committed an error in exercising discretionary power.